F1Part XA Scottish Criminal Cases Review Commission
The Scottish Criminal Cases Review Commission
F2194A Scottish Criminal Cases Review Commission.
(1)
There shall be established a body corporate to be known as the Scottish Criminal Cases Review Commission (in this Act referred to as “the Commission”).
(2)
The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission’s property shall not be regarded as property of, or held on behalf of, the Crown.
(3)
The Commission shall consist of not fewer than three members.
(4)
The members of the Commission shall be appointed by Her Majesty on the recommendation of the Secretary of State.
(5)
At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if he is an advocate or solicitor of at least ten years’ standing.
(6)
At least two thirds of the members of the Commission shall be persons who appear to the Secretary of State to have knowledge or experience of any aspect of the criminal justice system; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.
(7)
Schedule 9A to this Act, which makes further provision as to the Commission, shall have effect.
References to High Court
F3194B Cases dealt with on indictment.
(1)
The Commission on the consideration of any conviction of a person or of the sentence (other than sentence of death) passed on a person who has been convicted on indictment F4or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and F5, subject to section 194DA of this Act, the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII F6or, as the case may be, Part X of this Act.
(2)
The power of the Commission under this section to refer to the High Court the case of a person convicted shall be exercisable whether or not that person has petitioned for the exercise of Her Majesty’s prerogative of mercy.
(3)
This section shall apply in relation to a finding under section 55(2) and an order under section 57(2) of this Act as it applies, respectively, in relation to a conviction and a sentence.
(4)
For the purposes of this section “person” includes a person who is deceased.
F7194C Grounds for reference.
F8(1)
The grounds upon which the Commission may refer a case to the High Court are that they believe—
(a)
that a miscarriage of justice may have occurred; and
(b)
that it is in the interests of justice that a reference should be made.
F9(2)
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
F10194D Further provision as to references.
(1)
A reference of a conviction, sentence or finding may be made under section 194B of this Act whether or not an application has been made by or on behalf of the person to whom it relates.
(2)
In considering whether to make a reference the Commission shall have regard to—
(a)
any application or representations made to the Commission by or on behalf of the person to whom it relates;
(b)
any other representations made to the Commission in relation to it: and
(c)
any other matters which appear to the Commission to be relevant.
(3)
In considering whether to make a reference the Commission may at any time refer to the High Court for the Court’s opinion any point on which they desire the Court’s assistance; and on a reference under this subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point.
(4)
Where the Commission make a reference to the High Court under section 194B of this Act they shall—
(a)
give to the Court a statement of their reasons for making the reference; and
(b)
send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
F11(4A)
The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.
(4B)
Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.
(4C)
An application by the appellant for leave under subsection (4B) must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).
(4D)
The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).
(4E)
The Clerk of Justiciary must intimate to the persons mentioned in subsection (4F)—
(a)
a decision under subsection (4B), and
(b)
in the case of a refusal to grant leave for the appeal to be founded on additional grounds, the reasons for the decision.
(4F)
Those persons are—
(a)
the appellant or the appellant's solicitor, and
(b)
the Crown Agent.
(5)
In every case in which—
(a)
an application has been made to the Commission by or on behalf of any person for the reference by them of any conviction, sentence or finding; but
(b)
the Commission decide not to make a reference of the conviction, sentence or finding,
they shall give a statement of the reasons for their decision to the person who made the application.
F12194DAHigh Court's power to reject a reference made by the Commission
(1)
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2)
In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
(3)
On rejecting a reference under this section, the High Court may make such order as it considers necessary or appropriate.
F13194E Extension of Commission’s remit to summary cases.
(1)
The Secretary of State may by order provide for this Part of this Act to apply in relation to convictions, sentences and findings made in summary proceedings as they apply in relation to convictions, sentences and findings made in solemn proceedings, and may for that purpose make in such an order such amendments to the provisions of this Part as appear to him to be necessary or expedient.
(2)
An order under this section shall be made by statutory instrument, and shall not have effect unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
F14194F Further powers.
The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular—
(a)
themselves undertake inquiries and obtain statements, opinions or reports; or
(b)
request the Lord Advocate or any other person to undertake such inquiries or obtain such statements, opinions and reports.
F15194G Supplementary provision.
(1)
The Secretary of State may by order make such incidental, consequential, transitional or supplementary provisions as may appear to him to be necessary or expedient for the purpose of bringing this Part of this Act into operation, and, without prejudice to the generality of the foregoing, of dealing with any cases being considered by him under section 124 of this Act at the time when this Part comes into force, and an order under this section may make different provision in relation to different cases or classes of case.
(2)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Powers of investigation of Commission
F16194H Power to request precognition on oath.
(1)
Where it appears to the Commission that a person may have information which they require for the purposes of carrying out their functions, and the person refuses to make any statement to them, they may apply to the sheriff under this section.
(2)
On an application made by the Commission under this section, the sheriff may, if he is satisfied that it is reasonable in the circumstances, grant warrant to cite the person concerned to appear before the sheriff in chambers at such time or place as shall be specified in the citation, for precognition on oath by a member of the Commission or a person appointed by them to act in that regard.
(3)
Any person who, having been duly cited to attend for precognition under subsection (2) above and having been given at least 48 hours notice, fails without reasonable excuse to attend shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days; and the court may issue a warrant for the apprehension of the person concerned ordering him to be brought before a sheriff for precognition on oath.
(4)
Any person who, having been duly cited to attend for precognition under subsection (2) above, attends but—
(a)
refuses to give information within his knowledge or to produce evidence in his possession; or
(b)
prevaricates in his evidence,
shall be guilty of an offence and shall be liable to be summarily subjected to a fine not exceeding level 3 on the standard scale or to imprisonment for a period not exceeding 21 days.
F17194I Power to obtain documents etc.
(1)
Where the Commission believe that a person or a public body has possession or control of a document or other material which may assist them in the exercise of any of their functions, they may apply to the High Court for an order requiring that person or body—
(a)
to produce the document or other material to the Commission or to give the Commission access to it; and
(b)
to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and such an order may direct that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Court.
(2)
The duty to comply with an order under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of any enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.
(3)
The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to—
(a)
the case in relation to which the Commission’s function is being or may be exercised; or
(b)
any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4)
In this section—
“Minister” means a Minister of the Crown as defined by section 8 of the Ministers of the Crown Act 1975;
F18...
“public body” means
(a)
F19the Police Service of Scotland;
(b)
any government department, local authority or other body constituted for the purposes of the public service, local government or the administration of justice; or
(c)
any other body whose members are appointed by Her Majesty, any Minister F20, the Scottish Ministers or any government department or whose revenues consist wholly or mainly of money provided by Parliament.
F21194IAPower to request assistance in obtaining information abroad
(1)
Where it appears to the Commission that there may be information which they require for the purposes of carrying out their functions, and the information is outside the United Kingdom, they may apply to the High Court to request assistance.
(2)
On an application made by the Commission under subsection (1), the High Court may request assistance if satisfied that it is reasonable in the circumstances.
(3)
In this section, “request assistance” means request assistance in obtaining outside the United Kingdom any information specified in the request for use by the Commission for the purposes of carrying out their functions.
(4)
Section 8 of the Crime (International Co-operation) Act 2003 (c.32) (sending requests for assistance) applies to requests for assistance under this section as it applies to requests for assistance under section 7 of that Act.
(5)
Subsections (2), (3) and (6) of section 9 of that Act (use of evidence obtained) apply to information obtained pursuant to a request for assistance under this section as they apply under subsection (1) of that section to evidence obtained pursuant to a request for assistance under section 7 of that Act.
Disclosure of information
F22194J Offence of disclosure.
(1)
A person who is or has been a member or employee of the Commission shall not disclose any information obtained by the Commission in the exercise of any of their functions unless the disclosure of the information is excepted from this section by section 194K F23or 194M of this Act.
(2)
A member of the Commission shall not authorise the disclosure by an employee of the Commission of any information obtained by the Commission in the exercise of any of their functions unless the authorisation of the disclosure of the information is excepted from this section by section 194K F24or 194M of this Act.
(3)
A person who contravenes this section is guilty of an offence and liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
F25194K Exceptions from obligations of non-disclosure.
(1)
The disclosure of information, or the authorisation of the disclosure of information, is excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed—
(a)
for the purposes of any criminal, disciplinary or civil proceedings;
(b)
in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of justice;
(c)
by a person who is a member or an employee of the Commission to another person who is a member or an employee of the Commission;
(d)
in any statement or report required by this Act;
(e)
in or in connection with the exercise of any function under this Act; or
(f)
in any circumstances in which the disclosure of information is permitted by an order made by the Secretary of State.
(2)
The disclosure of information is also excepted from section 194J of this Act by this section if the information is disclosed by an employee of the Commission who is authorised to disclose the information by a member of the Commission.
(3)
The disclosure of information, or the authorisation of the disclosure of information, is also excepted from section 194J of this Act by this section if the information is disclosed, or is authorised to be disclosed, for the purposes of—
(a)
the investigation of an offence; or
(b)
deciding whether to prosecute a person for an offence,
unless the disclosure is or would be prevented by an obligation or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.
(4)
Where the disclosure of information is excepted from section 194J of this Act by subsection (1) or (2) above, the disclosure of the information is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment) arising otherwise than under that section.
(5)
The power to make an order under subsection (1)(f) above is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
F26194L Consent to disclosure.
(1)
Where a person or body is required by an order under section 194I of this Act to produce or allow access to a document or other material to the Commission and notifies them that any information contained in the document or other material to which the order relates is not to be disclosed by the Commission without his or its prior consent, the Commission shall not disclose the information without such consent.
(2)
Such consent may not be withheld unless—
(a)
(apart from section 194I of this Act) the person would have been prevented by any obligation of secrecy or other limitation on disclosure from disclosing the information without such consent; and
(b)
it is reasonable for the person to withhold his consent to disclosure of the information by the Commission.
(3)
An obligation of secrecy or other limitation on disclosure which applies to a person only where disclosure is not authorised by another person shall not be taken for the purposes of subsection (2)(a) above to prevent the disclosure by the person of information to the Commission unless—
(a)
reasonable steps have been taken to obtain the authorisation of the other person; or
(b)
such authorisation could not reasonably be expected to be obtained.
F27Special circumstances for disclosure
194MFurther exception to section 194J
(1)
The disclosure of information, or the authorisation of disclosure of information, is excepted from section 194J by this section if—
(a)
the conditions specified in subsection (2) are met, and
(b)
the Commission have determined that it is appropriate in the whole circumstances for the information to be disclosed.
(2)
The conditions are that—
(a)
the information relates to a case that has been referred to the High Court under section 194B(1),
(b)
the reference concerns—
(i)
a conviction, or
(ii)
a finding under section 55(2), and
(c)
the case has fallen, or has been abandoned, under the provisions or other rules applying by virtue of section 194B(1).
194NEffect of the exception
(1)
Where the disclosure of information is excepted from section 194J by section 194M, the disclosure of the information is not prevented by any obligation of confidentiality or other limitation on disclosure arising otherwise than under section 194J.
(2)
For the purpose of subsection (1), such an obligation or limitation does not include one imposed—
(a)
by, under or by virtue of any enactment, or
(b)
by any interdict or other court order applying in connection with this section.
194ONotification and representations etc.
(1)
When considering for the purpose of section 194M(1) the question of whether it is appropriate for the information to be disclosed, the Commission have the following duties.
(2)
The Commission must—
(a)
so far as practicable, take reasonable measures to—
(i)
notify each of the affected persons of the possibility that the information may be disclosed, and
(ii)
seek the views of each of them on the question, and
(b)
to such extent (and in such manner) as they think fit, consult the other interested persons.
(3)
The Commission must—
(a)
allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the question, and
(b)
have regard to any material representations made to them on the question by any of those affected and other interested persons within the prescribed period.
(4)
The Commission must have regard to any other factors that they believe to be significant in relation to the question.
(5)
In subsections (2) and (3)—
(a)
the references to the affected persons are to the persons—
(i)
to whom the information directly relates, or
(ii)
from whom the information was obtained, whether directly or indirectly,
(b)
the references to the other interested persons are to (so far as not among the affected persons)—
(i)
the Lord Advocate, and
(ii)
such additional persons (if any) as appear to the Commission to have a substantial interest in the question.
(6)
In subsection (3), the references to the prescribed period in relation to a particular person are to—
(a)
the period of 6 weeks, or
(b)
such longer period as the Commission may set,
starting with the date on which the notification was sent to, or (as the case may be) consultation was initiated with respect to, the person.
(7)
Subsections (3) and (6) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.
194PConsent if UK interest
(1)
Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).
(2)
Information falls within this subsection if it—
(a)
is held by the Commission, and
(b)
at any time, has been supplied by the UK Government under arrangements of any kind.
(3)
This subsection is complied with if, at any time, the UK Government has in connection with section 194M(1) given its consent to disclosure of the information.
(4)
In this section, “the UK Government” means a Minister of the Crown or a department of the Government of the United Kingdom.
194QConsent if foreign interest
(1)
Unless subsection (3) is complied with, section 194M(1) is of no effect in relation to any information falling within subsection (2).
(2)
Information falls within this subsection if it—
(a)
is held by the Commission, and
(b)
at any time, has been supplied by a designated foreign authority under arrangements of any kind.
(3)
This subsection is complied with if the designated foreign authority has in connection with section 194M(1) given its consent to disclosure of the information, by virtue of—
(a)
the arrangements concerned, or
(b)
subsection (4).
(4)
Where not previously given by virtue of those arrangements, it is for the Commission to seek the designated foreign authority's consent to disclosure of the information.
(5)
Subsection (1) does not apply if the information also falls within section 194P(2).
194RDesignated foreign authority
(1)
The references in section 194Q to a designated foreign authority are to a current or previous authority of a prosecutorial, judicial or other character which is or was located within a country or territory outwith the United Kingdom.
(2)
But, if in connection with subsection (4) of that section—
(a)
the Commission cannot reasonably identify or find the particular authority in question, or
(b)
they are unsuccessful in their reasonable attempts to communicate with it,
the references in subsections (3) and (4) of that section to the designated foreign authority are to be read as if they were to the relevant foreign government.
(3)
In the application of subsection (2), paragraph (a) of subsection (3) of that section is to be ignored.
(4)
In subsection (2)—
(a)
the references to the Commission include their acting with the Lord Advocate's help,
(b)
the reference to the relevant foreign government—
(i)
is to the government of the other country or territory,
(ii)
in the event of doubt as to the status or operation of a governmental system in the other country or territory, is to be regarded as being to the body described in subsection (5).
(5)
That is, the principal body in it (for the time being (if any)) that is recognised by the Government of the United Kingdom as having responsibility for exercising governmental control centrally.
194SDisapplication of sections 194O to 194R
(1)
Sections 194O to 194R cease to have effect if subsection (2) prevails.
(2)
This subsection prevails where, on their preliminary examination of the question to which section 194O(1) relates, the Commission determine for the purpose of section 194M(1) that it is manifestly inappropriate for the information to be disclosed.
(3)
But—
(a)
if there is a material change in any significant factor on which the determination depended, it is open to the Commission to re-examine the question (and this is to be regarded as another preliminary examination of the question),
(b)
where they choose to re-examine the question, the effect of sections 194O to 194R is restored unless subsection (2) again prevails.
194TFinal disclosure-related matters
(1)
If the Commission decide in pursuance of section 194M(1) to disclose the information—
(a)
subsection (2) applies initially, and
(b)
subsection (3) applies subsequently.
(2)
Before disclosing the information, the Commission must—
(a)
so far as practicable, take reasonable measures to notify of the decision—
(i)
each of the affected persons, and
(ii)
to the same extent as they were consulted under section 194O(2)(b), the other interested persons, and
(b)
allow the prescribed period for each of the affected and other interested persons involved to take steps (including legal action) in their own favour in relation to the decision.
(3)
In disclosing the information, the Commission must—
(a)
explain the context in which the information is being disclosed by them (including by describing the background to the case), and
(b)
where (for any reason) other information relating to the case remains undisclosed by them, explicitly state that fact,
and do so along with the material by which the disclosure is made.
(4)
In subsection (2), the references to the affected and other interested persons are to be construed in accordance with section 194O(5).
(5)
In subsection (2)(b), the reference to the prescribed period in relation to a particular person is to—
(a)
the period of 6 weeks, or
(b)
such longer period as the Commission may set,
starting with the date on which the notification was sent to the person.
(6)
Subsections (2)(b) and (5) are inapplicable in relation to a particular person if the Commission cannot reasonably ascertain the person's whereabouts.
(7)
In subsection (3)(b), the reference to other information is to any other information obtained by the Commission in the exercise of their functions.